The course prepared by one of the best Russian experts in constitutional law will focus on political, economic and cultural dimensions of the Russian constitutional system. Historical background of constitutional reforms and today developments will be discussed, basing on concrete examples of these developments. The course will both observe the specific of the Russian constitutional system in comparison to the other constitutional systems and penetrate into the key characteristics of the Russian constitution. Since adoption of the current Russian constitution of 1993 this constitutional system made a great evolution. The course will help to understand what ideas and concepts stand behind the Russian politics, both domestic and international, which principles lie in the basement of the legal framework for cultural, political and economic life of the Russian society. Foreigners and Russians see the Russian constitutional system in the «distorting mirror» of mass media; both of them need professional analysis of how the legal, governmental and economic systems are designed in Russia. The course will present this kind of analysis by a Russian scholar, familiar to contemporary development of constitutionalism in the world, who is able to present the view from inside Russia, but to position the Russian constitutional system in the a wide context of the world constitutionalism. On the finishing this course the students will: 1. make analysis of legislative and judicial acts, taken by Russian state authorities in the context of the Russian constitution, its main values and basic principles 2. to give expert assistance for interaction with the Russian government structures in a wide range of political and economic questions Know: 1. the specific of the Russian constitution, Russian legal, political and economic system 2. the history of forming and development of the contemporary constitutional system of Russia Have the capacity to: 1. better understand of political, economic and legal processes in Russia 2. make prognosis of the development of the Russian legislation and judicial practice, the reaction of the Russian state bodies to events in the world and to the decisions made by foreign states and international organizations
3.1. Human Rights and Public Interests
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Saint Petersburg State University 提供のコース
Constitutional Reforms in Russia
26件の評価
レッスンから
Modul 3. Human Rights in Russia
コースの提供者
Sergei A. BelovAssociate Professor of Constitutional Law, Candidate of law (PhD)
Department of State and Administrative Law, Law Faculty
It is not so easy to talk about human rights in Russia.
We have a lot of specific interpretation of human rights
known in the Russian practice and in the Russian scholarship.
And I will start my talk about human rights with some general approaches which
are very significant to understand how human rights
are treated and interpreted in the Russian legal system.
So, the first point,
I will start with is that in the Russian legal tradition, a very important,
very significant and sometimes even exaggerated
importance is given to the literal meaning of constitutional text,
both as legal acts like legislative acts text.
Sometimes, they are interpreted basing literally on their wordings.
And this, of course,
is a very specific approach which very important for interpretation of human rights
because when we think about how human rights should be enacted in the legislative acts,
in the judicial practice,
in the practice of the executive branch of the government,
we try to base rather on the ideas or principles which stand behind human rights,
while in the Russian tradition,
it is more attention paid to how human rights are written down in
the Constitution than to those ideas which they are based on.
The most important ideas for human rights are the freedom,
the freedom of individuals,
the freedom of any person who can do
what in her or his interests and probably those interests
as prevailing value for the legal regulation,
for the legal system comparing to the interests of the public,
of the society in general.
In the Russian tradition,
the approach to human rights is very different because the interests of
one person can not prevail in the social traditions in the social mentality,
cannot prevail over the interests of this society.
And that is why sometimes the conflict between public interests and
human rights are decided in favor of
public interest rather than to the individual's rights.
Of course it means that sometimes
the human rights are questioned as the legal institution,
as an institution of constitutional regulation.
It does not mean the canceling of human rights at all
but rather their specific interpretation, and sometimes,
they are balancing with public interests in
a different way comparing to western democracies,
to proportionality approaches, which are
followed by Foreign Constitutional Courts and Foreign Supreme Courts.
In the Russian traditions,
in the Russian culture,
in the Russian mentality,
what we can mark as Orthodox approach, Orthodox view,
on the society and the place of individuals in the society,
we can focus on the idea that the individual's wishes and
the individual's interests sometimes are or always or rather need to be limited,
limited in favor of the whole society.
And sometimes, it means that the idea,
the principle which stand as an idea deeply
involved in the application of
proportionality principle in Russia in the practice of the Russian Constitutional Court,
is interpreted in a very different way comparing to Western Courts.
I mean a kind of a reverse proportionality.
Meaning that in the Western judicial practice,
we see that proportionality means that
no public interest can prevail over individual rights,
but they could be a ground for limitation of rights,
but only in that way and in that limits which are supposed to
be rationally grounded and which could be acceptable for a democratic society.
But in Russia, not human rights
work in those limits when they do not contradict the public interest,
but rather, public interest prevail over human rights,
and human rights can be executed only in
those space where they do not violate the interest on the whole society.
That means that the system of values
which is supposed to be behind the constitutionalism,
behind the constitutional system as such,
is slightly or sometimes radically different in Russia comparing to Western democracies.
And the fight for human rights in Russia is a very important part
of our public discourse during the recent years and during
those years when we have these constitutional reforms in Russian.
I would say that the idea of the Rudolf von Ihering formulated in 19 century that any
right need to be supported by the fight for
this right is very actual and very current for today Russia.
If a person wants to realize her or his right in political economic or social sphere,
he or she should be ready to
protect this right and to go to the courts,
go to international courts,
and try to organize the execution of judicial decision,
if this decision will finally occur,
just to realize the right which is formally given,
which is written down in the Constitution.
It is not clear enough that in this or that case is
the constitutional provision covers the situation when the person,
the individual, wants to realize her or his right,
but it is the matter for evidence and for proving.
This is a matter for argumentation,
and this is a matter for fighting to protect the rights.
And this is a procedure which I would say is quite common for all, more in democracies.
In these or that dimensions,
in this or that extent,
we can find the same fight for the right in any democracy,
in any contemporary state.
But in Russia, it is very obvious that no realization of a right can be
without any support or any legal fight for realization of this right.
We can see that the society,
even the public opinion,
the common social relation to the human rights realization,
does not help individuals,
and individuals who want to realize this or that right,
should prove that they can base on the legal guarantees in the Constitution.
And this very sense,
this very interpretation, is based on the Constitution itself,
and this is the right in those extent that are guaranteed by the Constitution.
So, as a result,
the human rights in Russia is a matter for constant discussions for many disputes.
Many people believe and many people argue that there is
no effective protection of human rights in Russia,
but when we try to make a legal analysis,
we rather can conclude that there is some specific in interpretation
of correspondence of balancing between public interests and human rights.
And this specific is reflexed both in the legislation,
in the Constitutional norms themselves sometimes,
and of course in the judicial practice of judicial review legislative acts.
Our constitutional court basing on this specific role of view,
a specific for Orthodox tradition,
Orthodox not in the religious meaning,
but Orthodox in the meaning of social tradition,
approach to position on the individual in this society is
grounded on some legal tradition
of acceptance of human rights in the Russian constitutional system.
So, finally, we can make a conclusion that
human rights today are protected much more than they were protected a few years ago,
but still they are not so much developed,
so much interpreted, and so much protected as it is in many Western democracies.
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